[2020] KEELC 953 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

ELC JR MISC APPLICATION NO. 102 OF 2010

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR THE JUDICIAL REVIEW ORDERS OF CERTIORARI

AND

IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA AND ORDER LIII OF THE CIVIL PROCEDURE RULES

AND

IN THE MATTER OF THE LAND PARCEL NO.754 KIENGU/KANJOO ADJUDICATION SECTION

AND

IN THE MATTER OF APPEAL TO THE MINISTER OF LAND CASE NO. 216 OF 2010

BETWEEN

REPUBLIC .........................................................................................................APPLICANT

VERSUS

THE DISTRICT COMMISSIONER IGEMBE DISTRICT........................1ST RESPONDENT

THE DIRECTOR LAND ADJUDICATION AND SETTLEMENT.............2ND RESPONDENT

THE DIRECTOR LAND ADJUDICATION AND

SETTLEMENT OFFICER IGEMBE SOUTH DISTRICT..........................3RD RESPONDENT

ATTORNEY GENERAL ...........................................................................4TH RESPONDENT

AND

JOHN KINOTI KOBIA .......................................................................INTERESTED PARTY

GRACE KANYUA M’MUNJURI ..........................................................................EX-PARTE

RULING

1. This matter relates to the Notice of Motion dated 8/11/2019 brought under Section 1A, 1B, 3, 3A and 63 (e) of the Civil Procedure Act, Order 53 Rule 1 of the Civil Procedure Rules 2010 and any other enabling provisions of the law. The applicant/Interested Party seeks that the honorable court order the 3rd respondent to implement the judgment delivered herein on 23/02/2018.

2. The application is premised on the grounds set out in its body and the supporting affidavit of the applicant, John Kinoti Kobia. It is contended that the judgment delivered on 23/02/2018 was in favour of the Interested Party as the court dismissed the ex-parte applicant’s application to have the decision of the 1st respondent quashed. The 3rd respondent has up to date failed to enforce and implement the said decision. The applicant being the owner of land parcel LR No. KIENGU/KANJOO/754 Adjudication Section is suffering since he is not able to enjoy the fruits of the judgment. If the orders sought are not granted the applicant will suffer irreparable damages.

3. The applicant submitted that when the ex-parte applicant challenged the decision of the minister vide this judicial review suit, stay orders were granted pending the determination of the case. The court having pronounced itself on 23/02/2018 means that the stay orders lapsed but the same had been registered with the 3rd respondent. This has stopped the 3rd respondent from implementing the award of the minister. Thus, the application is merited and the same ought to be allowed.

4. The application was opposed by the ex-parte applicant vide her grounds of opposition dated 6/12/2019. She argued that the application is incompetent and should be dismissed since execution cannot be implemented in respect of a negative order. The ex-parte applicant relied on the cases; Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] eKLR and Kanwal Sarjit Dhiman v Keshavji Jivraj Shan [2008] eKLR to support her submissions.

5. The issue for determination is whether to order the 3rd respondent to implement the judgment delivered on 23/02/2018.

6. This judicial review suit was initiated by the ex-parte applicant against the decision of the minister, where the minister’s role was carried out by the District Commissioner. The ex-parte applicant challenged the appeal on two main grounds: that the 1st respondent, District Commissioner, did not have jurisdiction to hear the appeal; and that the District Commissioner acted capriciously and exhibited bias while handling the said appeal. The court made the following finding vide its judgment dated 23/02/2018:

“In the end, I find that the Ex parte Applicant has failed to establish the two grounds which formed the pillars of his application, and I hereby dismiss the said Notice of Motion dated 6/1/2011 with costs to the respondents and the Interested Party.”

7. The Court of Appeal of East Africa in the case of Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] eKLR stated as follows:

“But what is there to be executed under the judgment, the subject of the intended appeal? The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs.”

Also, in Peter Muneria Ole Munya & 4 others v Principal Magistrate, Narok & 6 others [2015] eKLR Mshila J stated as follows:

“If a Judicial Review application is dismissed, the court does not make a positive order which is capable of being executed and which may in turn be stayed.”

8. Consequently, the judicial review having been dismissed there is no positive order capable of being executed or implemented.

9. As for the stay order, it was granted pending the hearing and determination of the judicial review. Therefore, the judicial review suit having been heard and determined, the stay orders lapsed once the judgment was delivered on 23/02/2018.

10. Thus for purposes of clarity this court finds that the stay orders given on 20. 12. 2010 and issued on 21. 12. 2010 are no longer in force and are hereby vacated , otherwise the application itself is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED AT MERU THIS 21ST DAY OF OCTOBER, 2020

HON. LUCY. N. MBUGUA

ELC JUDGE

ORDER

The date of delivery of this Ruling was given to the advocates for the parties through a virtual session via Microsoft teams on 24. 9.2020. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this Ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.

HON. LUCY N. MBUGUA

ELC JUDGE